Practice and Procedure - Motion to dismiss the plaintiffs claim for want of prosecution - Whether delay by the plaintiffs inordinate and inexcusable - Whether the balance of justice favoured the case proceeding.

Before the High Court (Miss Justice Carroll); judgment delivered 5 October 1998.

Where no proceedings were instituted for over ten years after the facts giving rise to an action, that delay was inordinate. It was not a valid excuse for that delay in issuing proceedings to say that no proceedings could be taken because there were no rules of court regulating the right of appeal from decisions of the Mining Board, since the plaintiffs could have issued a plenary summons. Nor were the negotiations an excuse for delay since on the facts they proceeded on the basis that the plaintiffs had accepted the decision which they were now seeking to quash. In considering whether the balance of justice lay in favour of the case proceeding, it was relevant that the defendants were not in any way responsible for the delay and were now prejudiced in their defence by the death of their key witness. The case could not be determined on the basis of documentary evidence alone.

Miss Justice Carroll so held in making an order striking out the plaintiffs' case.

John Gordon SC and Gerard Hogan BL for the plaintiffs; Andrias O Caoimh SC and Caroline Costello BL for the second, third and fourth defendants.

MISS JUSTICE CARROLL said that this was an application by the second, third and fourth defendants for an order dismissing the plaintiffs' application due to their inordinate and inexcusable delay or alternatively for an order striking out the plaintiffs' application as an abuse of process.

Section 12 of the Minerals Development Act 1979 provides that the exclusive right of working minerals is vested in the minister except as provided in that Act. Section 14 provides that, subject to section 15(2), section 12 does not apply to minerals of any description in any land if, at 15 December 1978, a person was lawfully working or developing a mine of such minerals. That section further provides that a person should be deemed to be developing a mine if, on an application under section 15, he proves that before 15 December 1978 he had decided to do so in accordance with plans based upon a comprehensive study indicating a reasonable prospect of commercial development and that his decision stood at the passing of the 1979 Act.

Section 15 provides for a right of application to the Mining Board for the purpose of having minerals of any description in any land excepted from the application of section 12 and if successful, the board shall register those minerals as excepted minerals. On a refusal, a further application may be made to the High Court for an order directing that the minerals be registered as excepted minerals.

The factual background to this case was that the plaintiffs had made an application under section 14 in April 1980 in respect of minerals in lands in various townlands. The application was subsequently withdrawn in relation to some of the townlands. On 22 February 1984, the Mining Board registered the mineral in one townland and refused the other applications.

The plaintiffs' legal representatives subsequently indicated that they would appeal. This had not been done by mid-1985 and the Minister for Energy then informed the plaintiffs that the rights to work the minerals in a series of townlands had been vested in the minister. The plaintiff was advised that it would be necessary for it to apply for a State mining licence in respect of any existing or proposed mining operation in these townlands.

Negotiations took place in 1985 between the plaintiffs and the minister with a view to granting mining leases to the first plaintiff, but despite ongoing contact with the minister until 1988, the matter was never concluded and the negotiations were terminated. In 1991, the first plaintiff was advised that the second defendant was considering an application for a lease from a third party and was invited to make representations to the Mining Board. Its objections were contained in the report of the board in 1992. The minister then exercised his power under section 18 of the 1979 Act to grant a number of prospecting licences over some of the relevant areas to third parties.

On 17 May 1993 the plaintiffs were granted leave to apply by way of an application for judicial review for an order quashing the decision of the Mining Board made pursuant to section 18 of the 1979 Act and dated 14 December 1992, a declaration that sections 12 to 17 of the 1979 Act were contrary to Articles 40.1, 40.3 and 43 of the Constitution, and for damages for breach of their constitutional rights and for infringement of their legitimate expectation. They also issued plenary proceedings in which they sought a declaration that the first plaintiff was working or developing the lands on or before 15 December 1979 and that the appeal against the decision of the first defendant be allowed.

In support of the application for judicial review, the plaintiffs said that they had never accepted the decision of the Mining Board of 22 February 1984 and that at all material times the Department was informed that they were mining coal and would continue to do so in respect of the sites which they owned or had leased or in respect of which they have mining rights. The defendants had allowed the first plaintiff to believe that it could continue this work.

The defendants denied that the plaintiffs had acquired any legitimate expectation that they could carry on mining activity in the State in disregard of the 1979 Act and that the plaintiffs had been guilty of undue delay in bring the judicial review proceedings. They submitted that having applied for registration under the Act, they could not now impugn its validity and submitted that these proceedings were an abuse of process.

Miss Justice Carroll said that the first defendant had not taken any part in the proceedings but had merely indicated that it would abide by any order of the court.

The evidence for the defendants was that at the trial of the action, it would be necessary to have a complete rehearing of the matters which came before the Mining Board in the early 1980s and to establish the exact works and plans of the first plaintiff in relation to each of the townlands referred to on or about 15 December 1978. The defendants had no records in relation to this and their key witness, who had firsthand knowledge of the lands and of the plaintiffs involvement had died in 1986. It would not be possible to reconstruct his evidence from documentary sources.

The plaintiffs agreed that it would be necessary to establish the exact works and plans of the first plaintiff in relation to each townland. However, they believed that full details of these had been furnished to the first defendant in the course of the original application and that they existed as a matters of record. Copies had been retained by the plaintiffs and their solicitors. As regards the situation prior to 15 December 1978, physical evidence of the works carried out, such as disused mines, was visible to the naked eye and the works were referenced in the material furnished to the first defendant. The plaintiffs also claimed that the witness alleged to be crucial by the defendants was furnished with data which had been retained as a matter of public record and that the question of what works were carried on prior to the relevant date could be established by objective evidence.

Miss Justice Carroll said that the principles of law relevant to the consideration of whether there had been an inordinate and inexcusable delay in prosecuting a claim had been summarised by the Supreme Court in Primor plc v Stokes Kennedy Crowley, Primor plc v Oliver Freeney & Co. [unreported, 19 December 1995]. In that case the plenary summonses and statements of claim had been issued and served but no further steps were taken for seven years. Motions to dismiss the claim for want of prosecution were issued in 1993 and were allowed by the Supreme Court. The Supreme Court had ruled that a party seeking a dismissal on these grounds must establish that the delay was inordinate and inexcusable. The court then has a discretion based on whether the balance of justice is in favour or against the proceeding of the case.

Miss Justice Carroll said that these principles applied also to a case such as the present where no proceedings had been instituted for over ten years after the facts giving rise to the action. She held that the delay was inordinate. It was also inexcusable in that the only reason offered by the plaintiffs as to why an appeal had not been brought was that there were no rules of court regulating the right of appeal. That was not a valid excuse, since the plaintiffs could have taken the course which they had eventually taken and issued a plenary summons. The plaintiffs had also pointed to the protracted negotiations between the parties. However, it was common case that the plaintiffs were informed on 27 May 1985 that the minerals were vested in the minister. The negotiations had taken place in the three years subsequent to this and were consistent with negotiations for mining leases, and would not have been necessary if the minerals were "excepted" under section 14.

In exercising her judgment as to whether the balance of justice was in favour of the case proceeding, Miss Justice Carroll said that this was not a case in which the defendants had induced the plaintiffs to delay initiating the proceedings or to incur further expense in pursuing the action. The negotiations did not signify acquiescence on the part of the defendants. Furthermore, the defendants were prejudiced in their efforts to defend the proceedings. Miss Justice Carroll said she accepted that the evidence would have to be adduced by the plaintiffs would have to be challenged by witnesses. The documentary evidence which the plaintiffs claimed would be sufficient for the hearing of the appeal had been found by the Mining Board to be inadequate for the original hearing. In any event, documents must be proved by witnesses and the 1979 Act requires proof that mines were being worked on a particular day or that a particular intention existed when the Act was passed and this would require oral evidence. In addition to this prejudice to the defendants in their conduct of the case, there was an additional prejudice in that a number of prospecting licences had been granted by the minister over some of the lands in question.

Miss Justice Carroll made an order dismissing the plaintiffs' claim.

Solicitors: Lanigan Malcomson & Law (Carlow) for the plaintiffs; Chief State Solicitor for the defendants.